Mediation And Marriage: In Compromise We Trust

In family law, mediation is often associated with divorce agreements. After all, there is rarely a time so contentious, when a compromise is so badly needed, as during separation. By going through mediation, couples can save extensive time and money compared to a standard divorce procedure. But what if the same logic was applied to other marital agreements, such as prenuptials? This article briefly discusses the advantages and disadvantages of using mediation as a tool for reaching marital agreements, including before tying the knot. It discusses…

• The benefits of using the mediation process to negotiate and draft marital agreements.
• Common topics or issues brought up during mediation by couples.
• The limits of turning to mediation when drafting marital agreements.

What Is Mediation And How Does It Differ From Standard Negotiation?

To resolve most of the tense issues that come up in family law, such as custody disputes or divorce settlements, couples will usually need to hire separate lawyers and sometimes even go through court to reach an agreement.

Mediation offers an alternative by having both parties sit down with a neutral mediator who will focus on getting them to reach a compromise. By going back and forth between the parties and finding terms both can agree to, a mediator can save everyone substantial amounts of time and money, including the court system.

Can Mediation Be Used To Create Marital Agreements As Well?

If one defines “marital agreement” as a prenuptial agreement, postnuptial agreement, separation agreement, or stipulation of settlement (a/k/a divorce settlement agreement), then mediation can absolutely be used.

A mediator can do the same exact job a divorce attorney or family law attorney can do, with the end result of reaching any of those agreements including prenuptial agreements. There is, however, one major difference. Unlike an attorney, a mediator is not there to give legal advice. In fact, they cannot, as they must remain neutral throughout the process. If at any point in the process of reaching one of those agreements, either party or both have legal advice questions, they have to stop the mediation process and direct the question to his/her attorney.

With that caveat aside, a mediator can draft the agreement and have the parties execute it. If the mediator is a notary public, they can even notarize the parties’ signatures.

What Are the Key Benefits Of Using Mediation to Negotiate And Draft A Marital Agreement?

The most immediate benefit enjoyed by anyone using mediation is saving money. The retainer for a (good) mediator in the greater New York City area might cost anywhere between $5,000 and $10,000. You are still going to save money compared to trying to do the same process with each party spending $5,000 to $10,000 for their own separate attorneys (& for high net worth and/or complex cases, initial fees can be even more than that). When it works, mediation is clearly a cost-saving measure.

Mediation is also a non-adversarial setting, which inherently favors the spirit of compromise. And this is exactly the kind of attitude you want to build a marriage on. Mediation often consists of two parties either getting together on a Zoom call or in the mediator’s conference room, and it tends to be very low-key and amicable.

If the mediator perceives there is tension, such as fear, mistrust, or anger, most mediators are going to stop that process, as it is unlikely to work. The mediator will ask everyone to be amicable, rational, and reasonable to move forward. If not, then they will refund the balance of the retainer and leave you in the hands of separate attorneys, or your fates in the hands of Judges and litigation.

Is Mediation A Sufficiently Trustworthy And Thorough Process For Drafting Marital Agreements?

While Mediation is less adversarial than litigation, it does entail the exchange of crucial information, including the verification of numbers. It is quite appropriate for parties to exchange net worth statements, for example, when drafting marital agreements.

In the mediation process, either side can ask for the verification of amounts in bank accounts, investment accounts, or retirement accounts. In fact, it is even recommended, as you should not reach an agreement without understanding the situation and stakes. Likewise, it is not recommended to reach a settlement if you have no idea what the other person has in their bank account or going off a simple oral statement from them.

It is vital to have such information verified to avoid sticky legal situations further down the line. For example, consider the situation where a party says they have only $10,000 in an account – only to find out they actually had $30,000 after the agreement was signed because they lied in the mediation process. These situations can get very difficult, especially if you have already signed an agreement. This is why, even during mediation, full verification measures are encouraged.

What Are Some Common Issues Or Topics That Couples Can Address During Mediation In New York State?

The issues that are addressed in mediation are the same exact issues addressed in the regular divorce or Family Court process. In fact, having a prenuptial agreement negotiated ahead of time through mediation can even avoid most of the issues that come up later during a divorce.

It is pretty much a given if you are going through a divorce that both will agree on the termination of marriage. What you are really attempting to resolve are all the other issues that can exist between the two parties. These can include…

• Custody, visitation, and/or child support for any children.
• Spousal maintenance, i.e., alimony.
• Asset, property, and debt distribution.
• The valuation of other assets (businesses, professional practices, etc.).
• Dealing with a shared or individually owned business.

All such issues can still be resolved in the process of mediation, and many, or even all, could be agreed on even before the marriage through prenuptial agreements.

The mediator can even find experts, such as forensic accountants, to value a business or value a particular asset which comes up during the mediation process.

Assuming both parties reach an agreement on all these issues, the mediation process will go considerably smoother than traditional litigation, and at a substantially lower cost. Doing so before marriage could mean starting the relationship off right – on even grounds of transparency, compromise, and trust. And if the marriage ends up failing, well, you will have saved costs on divorce procedures as well!

For more information on Mediation In New York Family Law Marital Agreement Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 362-3080 today.